Com. v. Brabham, N.

J-S46011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NATHANIEL BRABHAM, :
:
Appellant : No. 59 MDA 2014
Appeal from the Judgment of Sentence Entered August 26, 2013,
In the Court of Common Pleas of York County,
Criminal Division, at No. CP-67-CR-0007086-2012.
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 29, 2014
Appellant, Nathaniel Brabham, appeals from the judgment of sentence
entered following his conviction of criminal conspiracy to deliver cocaine. For
the reasons that follow, we affirm.
The facts are as follows:
On the evening of June 14, 2012, Officer Benjamin Smith and other
Unit conducted an undercover buy/bust operation involving illegal narcotics.
The officers did not have a particular target for the operation; rather, the
known for drug activity and have the CI attempt to purchase illegal drugs.
Officer Smith provided the CI with pre recorded currency to purchase
narcotics and described the parameters of the operation so that the officers
involved could keep her under constant surveillance. If the CI completed a
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drug transa
Officer Kyle Pitts conducted surveillance with binoculars in a Miles
Muffler shop located across the street from the target area. From this
vantage point, Officer Pitts witnessed the CI make contact with a man, later
identified as Appellant, sitting on the front steps of 25 South West Street.
Appellant and the CI talked briefly, after which Pitts saw Appellant appear to
dial a number on a cellular telephone and have a short conversation.
After approximately twenty minutes, a gold-colored Pontiac GrandAm
drove into the area and parked. The CI approached the passenger side of
thereafter,
the CI backed away from the vehicle and gave the pre determined ponytail
sign that a drug transaction had occurred. Officer Pitts notified the other
participating officers that the controlled buy happened, provided a
description of the suspect and his location, and requested that they move in
to effectuate an arrest. Officer Pitts observed Officers Tiffany Vogel and
Larry Lawrence take Appellant into custody. Officer Pitts also watched the
CI walk back towards the location where Officer Smith was waiting. Before
Officer Pitts lost his visual of the CI, Officer Smith radioed confirming that he
had the CI in his sights.
When Officer Smith and the CI re connected, the CI produced a tied
off baggie corner that contained a rock like substance and twenty two
dollars of remaining official funds. The substance in the baggie field tested
positive for the presence of cocaine. At trial, it was stipulated that the
Pennsylvania State Police Crime Laboratory report identified the substance in
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question as cocaine, a Schedule II substance that weighed eleven
hundredths of a gram. N.T. (Trial), 7/8/13, at 93 95; Commonwealth Ex. 2.
station where Officer Lawrence delivered the standard Miranda1 warnings.
Appellant signed a form indicating that he understood his rights and waived
his right to remain silent. Appellant told Officer Lawrence that a girl with a
ponytail walked up to him and stated that she wanted to buy twenty dollars
of rock cocaine. Appellant then placed a telephone call to a person known to
2
girl rock cocaine. Appellant also committed his statement to writing.
On June 15, 2012, Appellant was charged with delivery of cocaine.
Later, on November 8, 2012, the Commonwealth filed an information
replacing the charge of delivery of drugs with one count of criminal
conspiracy to deliver drugs.
Subsequently, Appellant sent correspondence to the trial court
expressing a desire to represent himself. On February 14, 2013, the trial
representation request. As the court
was satisfied that Appella
directed Assistant Public Defender Clasina
Houtman to serve as stand by counsel. N.T. (Pretrial Conference), 2/14/13,
at 11. Later that day, Appellant filed an omnibus pretrial motion that
1
Miranda v. Arizona, 396 U.S. 868 (1969).
2
, at 196.
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included a motion to suppress statements that he made to police on the
night of his arrest.
motion. The portion of the hearing relevant to this appeal concerned
arrest statements to police be suppressed
between Appellant and the CI. At the conclusion of the police testimony, the
trial court denied arrest statements
and determined that there was sufficient evidence to support a prima facie
case of criminal conspiracy against Appellant.3
trial court commenced a pretrial hearing. Appellant requested that Attorney
Houtman resume her representation of him, and the trial court granted that
4
request. N.T. (Pretrial Hearing), 4/23/13, at 78. At this point, the trial
court learned that Appellant wanted to file a motion to disclose the identity
of the CI and it entertained an oral motion on that request. Although the
ention to any contradictory
3
Appellant did not testify at the pretrial hearing.
4
The transcript of proceedings for the hearing held on April 23, 2013, is
omnibus pretrial motion that included the motion to suppress his post arrest
statements and a motion to disclose the identity of the CI were also litigated
at this proceeding. To simplify, evidence elicited at this hearing regarding
ceedings as
related to the motion to disclose and all other matters will be referenced as
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legal authority on the disclosure issue. At no time did Appellant respond to
this invitation or renew the motion for disclosure.
On July 8th and July 9th, 2013, Appellant was tried before a jury.
Officers Smith, Pitts, and Lawrence testified for the Commonwealth and
deliberations, Appellant was found guilty of criminal conspiracy to deliver
cocaine.5 On August 26, 2013, he was sentenced to a three to six year
term of imprisonment.
On September 4, 2013, Appellant filed post-trial motions that the trial
court denied on December 18, 2013. This timely appeal followed.
Appellant presents three questions for review:
I. WHETHER THE TRIAL COURT ERRED IN DENYING
THE CI BECAUSE THE CI WAS A NECESSARY WITNESS
WHERE APPELLANT WAS CHARGED WITH CRIMINAL
TO WHETHER IT WAS APPELLANT, OR THE CI, WHO MADE
THE PHONE CALL TO THE DRUG DEALER AND WHO
PROVIDED THE PHONE NUMBER OF THE DRUG DEALER?
II. WHETHER THE COMMONWEALTH PRESENTED
INSUFFICIENT EVIDENCE TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT WAS GUILTY OF
CRIMINAL CONSPIRACY TO COMMIT DELIVERY OF
COCAINE BECAUSE THE COMMONWEALTH FAILED TO
PRESENT ANY EVIDENCE SHOWING THAT (1) APPELLANT
MADE AN AGREEMENT WITH AQUIL HILLS, THE DRUG
DEALER, AND THAT HE (2) HAD THE INTENT TO BRING
5
Aquil Hills pled guilty to delivery of a controlled substance, specifically,
crack cocaine. N.T. (Trial), 7/9/13, at 196 197; Defense Ex. 5.
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ABOUT THE CRIME OF DELIVERY OF COCAINE, AND THAT
HE (3) DID ANY OVERT ACTS IN FURTHERANCE OF THE
CONSPIRACY?
III. WHETHER THE VERDICT WAS AGAINST THE WEIGHT
EVIDENCE WAS NOT CREDIBLE WHERE: THE OFFICER
WHO ENGAGED IN SURVEILLANCE WAS TOO FAR AWAY
TO HAVE SEEN OR HEARD WHO MADE THE PHONE
CALL TO THE DRUG DEALER AND WHAT WAS
DISCUSSED; THE COMMONWEALTH NEVER CHARGED
THE DRUG DEALER WITH THE CRIME OF CRIMINAL
CONSPIRACY WITH APPELLANT, BUT RATHER ONLY
WITH DELIVERY; AND THE COMMONWEALTH DID NOT
CALL THE CI AND THE JURY WAS PERMITTED TO INFER
THAT SHE WOULD HAVE TESTIFIED FAVORABLY FOR
APPELLANT?
motion to reveal the identity of the confidential informant. Appellant argues
that disclosure was required to demonstrate that it was the CI, and not
discretion.
Commonwealth v. Washington, 63 A.3d 797, 801 (Pa. Super. 2013). In
instances where the confidential informant is an eyewitness to the events in
Rule of Criminal Procedure 573:
(2) Discretionary With the Court
(a) In all court cases, except as otherwise provided . . . if
the defendant files a motion for pretrial discovery, the court may
inspect and copy or photograph any of the following requested
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items, upon a showing that they are material to the preparation
of the defense, and that the request is reasonable:
(i) the names and addresses of eyewitnesses . . . .
Pa.R.Crim.P. 573(B)(2)(a)(i).
The Commonwealth, nonetheless, retains a qualified privilege to
withhold the identity of a confidential source. Commonwealth v. Watson,
69 A.3d 605, 607 (Pa. Super. 2013) (citations omitted). To overcome this
qualified privilege and attain disclosur
information sought is material to the preparation of the defense and that the
Id. at 608 (citation omitted). The party seeking
Washington, 63 A.3d at 801(quoting Commonwealth v. Withrow, 932 A.2d 138, 140 141 (Pa. Super.
informant is material to the defense is the trial court required to exercise its
discretion to determine whether the information should be revealed by
balancing relevant factors, which are initially weighted toward the
Watson, 69 A.3d at 608 (citing Commonwealth v.
Bing, 713 A.2d 56, 58 (Pa. 1998))
To strike the appropriate balance, courts consider the following
principles:
A further limitation on the applicability of the privilege arises
from the fundamental requirements of fairness. Where the
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communication, is relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause, the
privilege must give way. In these situations[,] the trial court
may require disclosure and, if the Government withholds the
information, dismiss the action.
No fixed rule with respect to disclosure is justifiable. The
problem is one that calls for balancing the public interest in
prepare his defense. Whether a proper balance renders
nondisclosure erroneous must depend on the particular
circumstances of each case, taking into consideration the crime
charged, the possible defenses, the possible significance of the
Commonwealth v. Marsh, 997 A.2d 318, 322 (Pa. 2010) (citations
omitted).
the following:
the Commonwealth should not be required to reveal the identity
and the observations of the officer.
N.T. (Pretrial Hearing), 4/23/13, at 82.
determined that Appellant failed to make the threshold showing that the
identity of the CI was material to his defense. As further explained in the
In this case, Officer Pitts testified that he observed
Defendant pull out a cell phone and appear to make a call
shortly after coming into contact with the CI. (N.T., 4/23/13,
page 27). The Officer also testified that at no time did he either
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see the CI with a phone, that he did not see Defendant hand the
CI his phone, nor did he see the CI make a phone call (N.T.,
4/23/13, pages 34-36). Moreover, the Officer was using
binoculars to assist with the surveillance. (N.T., 4/23/13, page
his own oral and written statements to Officer Lawrence that he
4/23/13, pages 50-52); Commonwealt
show that the identity of the confidential informant is material to
the defense, and did not overcome the qualified privilege of the
Commonwealth to withhold the identity of the CI.
Trial Court Opinion, 3/24/14, at 4.
disclosure. The police officers testified at the pretrial motion hearing that
the CI was under constant surveillance. After Officer Smith instructed the CI
on the specifics of the buy/bust operation, he relayed her description to the
other officers involved and informed them that she was on the move.
Officer Smith continued observing the CI until Officer Pitts radioed that he
had her in his view. N.T. (Suppression), 4/23/13, at 9 13.
From his location in the muffler shop, Officer Pitts witnessed the CI
conversing with Appellant after which Appellant appeared to place a
telephone call. N.T. (Suppression), 4/23/13, at 27. Officer Pitts further
attested that he did not see the CI with a telephone, never saw Appellant
hand the CI a telephone, nor did he observe the CI place a telephone call.
Id. at 35 36.
Additionally, as e
written statements offer compelling evidence that he was the person who
Miranda rights, he told Officer
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Lawrence that a girl with a ponytail walked up to him and stated that she
wanted to buy twenty dollars of rock cocaine. N.T. (Suppression), 4/23/13,
at 46
Id. at 47.
Appellant deta
Id.
Appellant also authored a written statement revealing that he had
this girl call him, she said that he could not come because his boss was
there. I ask him for some drugs because of my birthday to give a girl for
Id.
Because Officer Lawrence felt the need to clarify the information in
en
question and answer section designed to explain some inconsistencies. In
relevant part, the supplement read:
Q: Lawrence
A: Brabham
ponytail?
A: Yes I call for her a $20 . . . .
with the ponytail drugs?
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A: On my porch then I went in [then] came back and
called . . . .
Q: When the police arrested you on the porch, the cell
phone that was in your possession, was it the phone you used to
A: Yes.
N.T. (Suppression), 4/23/13 at 49 52; Commonwealth Ex. 2. This written
supplement explained away any ambiguity regarding the person who called
that his conspiracy conviction
was premised primarily on whether he placed the telephone call, we reject
tion.
the pretrial hearing and its subsequent written opinion that the request for
police that he was the
Accordingly, we conclude that the trial court properly d
motion to compel disclosure of the confidential informant.
evidence supporting his conviction of criminal conspiracy. Appellant argues
that the Commonwealth failed to prove that he: (1) made an agreement
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with his co-conspirator, Aquil Hills; (2) intended to commit the crime of
delivery of cocaine; and (3) did any overt act in furtherance of a conspiracy.
When examining a challenge to the sufficiency of the evidence:
[t]he standard we apply . . . is whether viewing all the evidence
admitted at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
[the above] test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. Any doubts regarding
-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Orr, 38 A.3d 868, 872 873 (Pa. Super. 2011) (quoting
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)). This
standard is similarly applicable in cases where the evidence is circumstantial
Commonwealth v.
Santiago, 980 A.2d 659, 662 (Pa. Super. 2009) (quoting Commonwealth
v. Johnson, 818 A.2d 514, 516 (Pa. Super. 2003)).
To sustain a conviction for criminal conspiracy, the Commonwealth
must prove that a defendant entered into an agreement to commit or aid in
an unlawful act with another person; that he and that person shared a
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criminal intent; and that an overt act was taken in furtherance of the
conspiracy. 18 Pa.C.S.A. § 903; Commonwealth v. Smith, 69 A.3d 259,
can seldom, if ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the circumstances that
Commonwealth v. Kinard, ___ A.3d ___, 2014 PA
Super 41, at *12 (Pa. Super. filed March 4, 2014) (quoting Commonwealth
v. Johnson, 719 A.2d 778, 785 (Pa. Super. 1998) (en banc)). The
conspiratorial agreement inferred from a variety of circumstances
including, but not limited to, the relation between the parties, knowledge of
and participation in the crime, and the circumstances and conduct of the
parties surrounding the criminal Commonwealth v. Watley, 81
A.3d 108, 116 (Pa. Super. 2013) (quoting Commonwealth v. Feliciano, 67
A.3d 19, 25 26, 1147 (Pa. Super. 2013)). We have held additionally that an
overt act need not be committed by the defendant; it need only be
committed by a co-conspirator. Commonwealth v. Hennigan, 753 A.2d
245, 253 (Pa. Super. 2000) (quotation omitted).
Appellant contends that the evidence supporting his conspiracy
conviction was deficient for a number or reasons, all of which, to some
Appellant claims that the Commonwealth failed to establish that he entered
into an agreement to commit or aid in an unlawful act. Appellant reasons
required agreement element.
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In this same vein, Appellant asserts that the evidence adduced at trial
instead shows
telephones or to check the telephone records to determine if dialed calls
were successfully completed. In his view, the only competent evidence
offered about the telephone call was his testimony that he handed a
telephone to the CI and she then placed the call. N.T. (Trial), 7/9/13, at
166. He bolsters this argument with reference to certain inconsistencies in
Off
We disagree that the evidence presented at trial was insufficient to
number and had specified that Appellant should call him if he needed drugs.
N.T. (Trial), 7/9/13, at 180. Officer Smith testified as to the details of the
buy/bust operation and his interaction with the CI. N.T. (Trial), 7/8/13, at
77
he telephone call is irrelevant, as he did not offer any
evidence at trial concerning their dialogue for the jury to consider.
among Appellant, the CI, and the gold vehicle, including a declaration that
the CI did not make any telephone calls. N.T. (Trial), 7/8/13, at 115. This
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9/25/
statement, if it can even be characteri
attention and they were free to consider the discrepancy to impeach Officer
See Commonwealth v. Badman, 580 A.2d 1367, 1370
(Pa. Super. 1990) (in criminal proceeding, credibility of witness may be
impeached with evidence of prior statement inconsistent with witness's
present testimony).
We conclude that the telephone call evidence, viewed favorably to the
Commonwealth, was sufficient for the factfinder to determine that Appellant
g an arrangement to
deliver narcotics. The jury decided that the credible evidence proved the
existence of this illegal agreement and we discern no reason to disturb its
verdict.
Appellant next disputes the evidentiary worth of his post arrest
statements to Officer Lawrence. On the night of his arrest, Appellant orally
7/8/13, at 139
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man status. Although Appellant initially used some confusing language
concerning the details of the telephone call, Officer Lawrence created the
supplemental written question and
statement. N.T. (Trial), 7/8/13, at 143. In this portion of the written
statement, Appellant thrice admitted that he was the person who placed the
Id. at 145 149; Commonwealth Ex. 4 5.
Appellant attributes the conflicting renditions in his oral and written
diabetic and his blood sugar levels were low after his arrest. Appellant
claims that although he alerted Officer Lawrence to his medical condition,
the officer proceeded with the questioning. N.T. (Trial), 7/9/13, at 169.
A
corroborated by the record. While Appellant testified that he informed the
officers that he was diabetic and that his sugar levels were low, he never
requested medical treatment. Indeed, he indicated to Officer Lawrence that
er
Lawrence did not recall Appellant mentioning his diabetes or requesting
medical attention. N.T. (Trial), 7/8/13, at 156.
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elements of conspiracy. Appellant maintains simply that the absence of
to deliver cocaine.
We previously determined that it was reasonable for the jury to find
the
the drugs and sold same to the CI, it was likewise reasonable for the jury to
substance to the CI.
With regard to the overt act element of the offense, the
Commonwealth was not required to prove that Appellant committed an act
in furtherance of the conspiracy. According to 18 Pa.C.S.A. § 903(e), it need
ged and proved to have been done
See also Hennigan, 753
A.2d at 253 (overt act need not be committed by defendant; it need only be
committed by co-
brought the drugs to the sale site and consummated the drug deal, thereby
committing the requisite overt act. Accordingly, the Commonwealth
presented sufficient evidence of a criminal conspiracy on June 14, 2012, and
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the weight of the evidence. Pa.R.Crim.P. 607 instructs, in part, that a claim
that the verdict was against the weight of the evidence must be raised with
the trial judge in a motion for a new trial in a written or oral motion before
the court prior to sentencing, or in a post-sentence motion. Pa.R.Crim.P.
607(A)(1) (3). Here, Appellant filed post-trial motions raising a weight of
the evidence claim on September 4, 2013, that the trial court denied on
December 18, 2013. Appellant has thus preserved his weight of the
evidence claim for appellate review.
of the trial judge, who heard the same evidence and who possesses only
Commonwealth v. Sanchez, 36
A.3d 24, 39 (Pa. 2011) (citation omitted). Relief cannot be based merely on
Id. (quoting Commonwealth v. Blakeney,
946 A.2d 645, 653 (Pa. 2011))
greater weight that to ignore them or to give them equal weight with all the
Commonwealth v. Antidormi, 84 A.3d 736,
758 (Pa. Super. 2014) (quoting Commonwealth v. Widmer, 744 A.2d 745,
752 (Pa. 2000)). The trial court must accord substantial deference to the
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whether their testimony, if believed, establishes the elements of the offense
Commonwealth v. Stays, 70 A.3d 1256, 1267 (Pa. Super.
2013). If that evidence is legally sufficient, the trial court may grant a new
ict is so contrary to
Id.Appellate scrutiny of a weight of the evidence issue is governed by the
principles set forth in Commonwealth v. Champney, 832 A.2d 403 (Pa.
2003):
The weight of the evidence is exclusively for the finder of fact
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
contrary
Moreover, where the trial court has ruled on the weight
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on the
weight claim.
Id. at 408 (citations omitted).
Appellant contends that the verdict was against the weight of the
credible evidence because: (1) the officer engaged in the surveillance was
conspired with Appellant to deliver narcotics; and (3) the Commonwealth did
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not call the CI as a witness, allowing the jury to infer that she would have
testified favorably for Appellant.
the weight of the evidence. First, after reviewing the specifics of Officer
the jury to decide. Trial Court Opinion, 3/21/14, at 9. The court further
det
describe the content of the telephone conversation was groundless because
there was no claim by the Commonwealth that Officer Pitts heard anything.
Id. at 10.
Next, in regard to the delivery offense lodged against "K" as a result of
the buy/bust operation, the trial court dismissed the import of the different
crimes charged. The trial court reasoned that
the path of prosecution, or non-
alleged co-conspirator(s) is irrelevant as to the prosecution of
the defendant. Rather, all that is required is proof of the
elements of conspiracy, one of which is that the defendant
conspired with one or more persons to commit or plan a crime.
Trial Court Opinion, 3/21/14, at 10 (quoting Commonwealth v. Fremd,
860 A.2d 515, 521 522 (Pa. Super. 2004)).
that she would have testified in his favor. Describing this argument as
necessary witness and that her identity would not be disclosed. Trial Court
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Opinion, 3/24/13, at 11. The trial court also noted
request, it charged the jury as follows on the permissible inferences it could
There is a question about what weight, if any, you should
give to the failure of the Commonwealth to call the confidential
informant as a witness. If three factors are present and there is
witness, the Jury is allowed to draw a common sense inference
that her testimony would have been unfavorable to that party.
The three necessary factors are: First, the person is available to
that party only and not to the other; Second, it appears the
person has special information material to the issue; and, Third,
ould not be merely cumulative.
If you find these three factors present, and you find there
call the confidential witness, confidential informant to testify,
you may infer, but only if you choose to, that her testimony
would have been unfavorable to the Commonwealth.
N.T. (Trial), 7/9/13, at 248 249.
benefit, particularly because there was no indication that the CI would have
testified favorably to Appellant. The trial court further reasoned that the
regarding the safety concerns attendant to protecting the identity of
confidential informants. Trial Court Opinion, 3/24/13/ at 12. The trial court
Id.After reviewing the record and trial transcripts, we conclude that the
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have shocked the
challenge to the weight of the evidence must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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